Hamilton v. Social Security Administration, Commissioner

Filing 21

MEMORANDUM OPINION. Signed by Magistrate Judge John H England, III on 6/16/2015. (KEK)

FILED
2015 Jun-16 AM 11:14
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
MELODIE HAMILTON,
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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Case Number: 4:14-cv-02236-JHE

MEMORANDUM OPINION 1
On November 18, 2014, Plaintiff Melodie Hamilton (“Plaintiff” or “Hamilton”) initiated
this action under 42 U.S.C. §§ 405(g), 1383(c)(3) to obtain judicial review of the
Commissioner’s final decision denying her application for a period of disability (“DIB”) and
supplemental security income (“SSI”). (Doc. 1).

Defendant moves to dismiss the action,

contending Hamilton complaint is untimely. (Doc. 7). After briefing was complete, Plaintiff
moved to remand this action to the Appeals Council to reopen her claim. (Doc. 17). The
motions are fully briefed and ripe for review. (Doc. 7, 9, 11, 17, 18, & 20). For the reasons
stated below, the first motion will be GRANTED, the motion to remand will be DENIED, and
this action be DISMISSED as untimely.
I. Standard of Review
If a district court considers matters outside the pleadings when ruling on a motion to
dismiss under Rule 12(b)(6), the motion must be treated as one for summary judgment under

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In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge
conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 14).
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Rule 56. Fed. R. Civ. P. 12(d). Shuler v. Bd. of Trustees of Univ. of Ala., 480 Fed. Appx. 540,
542 (11th Cir. 2012). Because the parties submitted affidavits and other evidentiary materials in
support of their positions, the undersigned construed the motion to dismiss as a motion for
summary judgment pursuant to Rule 56 and provided additional time for the parties to file
evidence in support of their relative positions. (Doc. 13).
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper if
the pleadings, the discovery, and disclosure materials on file, and any affidavits “show that there
is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter
of law.” “Rule 56[] mandates the entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v. Catrett, 447 U.S. 317, 322 (1986). The moving party
bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323.
The burden then shifts to the nonmoving party, who is required to “go beyond the pleadings” to
establish there is a “genuine issue for trial.” Id. at 324. (citation and internal quotation marks
omitted). A dispute about a material fact is genuine “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
The Court must construe the evidence and all reasonable inferences arising from it in the
light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157,
(1970); see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the nonmoving party’s favor). Any factual disputes will be resolved in Plaintiff’s favor when sufficient

competent evidence supports Plaintiff’s version of the disputed facts. See Pace v. Capobianco,
283 F.3d 1275, 1276-78 (11th Cir. 2002) (a Court is not required to resolve disputes in the nonmoving party’s favor when that party’s version of the events is supported by insufficient
evidence).

However, “mere conclusions and unsupported factual allegations are legally

insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th
Cir. 2005) (per curiam) (citing Bald Mtn. Park, Ltd. V. Oliver, 836 F.2d 1560, 1563 (11th Cir.
1989)). Moreover, “[a] mere ‘scintilla’ of evidence supporting the opposing party’s position will
not suffice; there must be enough of a showing that the jury could reasonably find for that party.”
Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
II. Procedural History and Summary Judgment Facts
On May 11, 2013, an Administrative Law Judge (“ALJ”) issued a decision denying
Hamilton’s claim for DIB and SSI Benefits. (Doc. 7-1). Hamilton requested review of the
ALJ’s decision, and on September 4, 2014, the Appeals Council issued a notice denying
Hamilton’s request for review. (Doc. 7-2). The Appeals Council’s notice informed Hamilton of
her right to appeal the Commissioner’s decision denying her DIB and SSI claims by filing a
complaint in federal district court within sixty days from receipt of the notice. (Id. at 2-3). The
notice further informed Hamilton the sixty days began the day after she received the notice, and
receipt was presumed five days after the notice date unless she showed it was received later.
(Id.at 3). There is no evidence Hamilton requested an extension of time to file her complaint
prior to initiating this action. (Docs. 7-2 at ¶4 and 9). Therefore, to be timely, Hamilton had to
have filed her complaint within sixty-five days after September 4, 2014 – by November 10,

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2014. 2 On March 24, 2015, long-after filing this action, Hamilton requested permission from the
Appeals Council for an extension of time to file this case. (Docs. 9 & 9-1)). By letter dated
March 31, 2015, the Appeals Council informed Hamilton it was not granting her additional time
to file a civil action. (Doc. 11-1).
III. Analysis
42 U.S.C. § 405(g), (h) provide for a limited judicial review of the Commissioner’s final
decisions on claims arising under Title II of the Social Security Act. Section 405(g) provides, in
part:
(g)
Any individual, after any final decision of the Commissioner made after a
hearing to which he was a party, irrespective of the amount in controversy, may
obtain review of such decision by a civil action commenced within sixty days
after the mailing to him of a notice of such decision or within such further time as
the Commissioner may allow.
Section 405(h) provides, in part:
(h)
The findings and decision of the Commissioner after a hearing shall be
binding upon all individuals who were parties to such hearing. No findings of
fact or decision of the Commissioner shall be reviewed by any person, tribunal, or
governmental agency except as herein provided. No action against the United
States, the Commissioner, or any officer or employee thereof shall be brought
under section 1331 or 1346 of Title 28 to recover on any claim arising under this
subchapter.
Under these subsections, the only civil action permitted against the Commissioner’s decision on
a claim arising under Title II or XVI of the Social Security Act is one “commenced within sixty
days after the mailing . . . of notice of such decision or within such further time as the
Commissioner may allow.” 42 U.S.C. §§ 404(g), 1383(c)(3).

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The expiration of sixty-five days fell on a Saturday, therefore, pursuant to Rule
6(a)(1)(C), Fed. R. Civ. P., Hamilton had until the following Monday to file the complaint.

The Commissioner has interpreted “mailing” as the date of receipt by the individual of
the Appeals Council’s notice of denial of request for review of the presiding officer’s decision or
the Appeals Council’s decision. See 41 Fed. Reg. 53,792 (Dec. 9, 1976) (codified at 20 C.F.R. §
422.210(c); 20 C.F.R. § 404.981). The date of receipt is presumed to be five days after the date
of the notice, unless a reasonable showing to the contrary is made to the Appeals Council. See
20 C.F.R. §§ 404.901, 416.1401, 422.210(c). The Commissioner has interpreted this provision
to mean that a complaint is timely filed if it is filed within sixty-five days of the date of the
Appeals Council notice. See 20 C.F.R. §§ 404.901, 404.981, 416.1401, 416.1481, 422.210(c).
The Appeals Council dated its notice denying Hamilton’s request for review as
September 4, 2014. (Doc. 7-2 at ¶ 3(a)). Hamilton’s complaint is untimely because she did not
file it until November 18, 2014, more than sixty-five days after the Appeals Council notice,
which occurred on November 10, 2014. Hamilton offers no extraordinary circumstances to
justify tolling of the statute of limitations. (See doc. 9). To the contrary, in her response to the
motion to dismiss, construed as a motion for summary judgment, Hamilton explains she wrote to
the Appeals Counsel on March 24, 2015 requesting permission for an extension of time to file
the complaint. (Id.). On March 31, 2015, the Appeals Council denied Hamilton’s request for an
extension of time. (Doc. 11-1). Accordingly, Hamilton having offered no excuse for her
untimely filing other than an ambiguous “clerical error,” (doc. 18 at 1), this action is due to be
dismissed.
To the extent Plaintiff relies on Bloodsworth v. Heckler, 703 F.2d 1233 (11th Cir. 1983),
to argue this Court can review the Appeals Council’s decision not to grant the extension of time
to file her complaint, such reliance is misplaced. In Bloodsworth, the Eleventh Circuit noted the
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district court had exercised jurisdiction to review the Appeals Council’s denial of an extension of
time to request review by the Appeals Council of an Administrative Law Judge decision. Id. at
1235. The Eleventh Circuit did not hold that such an exercise of jurisdiction was appropriate
where the question involved the Appeals Council’s denial of a request for an extension of time to
file a civil action. Id; see Stone v. Heckler, 778 F2.d 645, 648 (11th Cir. 1985). In Stone v.
Heckler, the Eleventh Circuit explained that review was allowed in Bloodsworth because, if
courts were not allowed to review the Appeals Council’s dismissal of a request to review an
ALJ’s decision, the claimant would be stuck “permanently in limbo” because the statute would
not allow review. Stone, 778 F.2d at 648. When a claimant has a final, appealable decision from
the Appeals Council, as here, the claimant could and should proceed directly to district court and
there is no “limbo” as there was in Bloodsworth. See id. The facts supporting the decision in
Bloodsworth are distinguishable from those before this Court, and Bloodsworth does not change
the fact this Court may not review the Commissioner’s decision. See also Harveston v. Comm’r
of Soc. Sec., 211 F.3d 1269 (6th Cir. 2000) (table) (“In addition, the attempt to have the district
court review the Appeals Council decision not to grant an extension of time within which to
appeal must fail. Federal judicial review is available only for final agency decisions made after a
hearing.”).
Plaintiff’s motion for remand is also due to be denied because, as thoroughly explained
above, the time to appeal has passed and the Appeals Council’s action denying the motion to
extend is not reviewable. See Stone, 778 F.2d at 648. There are no facts to support equitable
tolling of the limitations period. See Wakefield v. Railroad Retirement Bd., 131 F.3d 967, 969
(11th Cir. 1997) (allowing equitable tolling where the claimant actively pursued a judicial

remedy by filing a defective pleading during the statutory period or where the claimant was
induced or tricked by his adversary’s misconduct into allowing the deadline to pass).
IV. Conclusion
Defendant’s motion for summary judgment, (doc. 7) is GRANTED, Plaintiff’s motion
for remand, (doc. 17), is DENIED, and this action will be DISMISSED as untimely. A separate
order will be entered.
DONE this 16th day of June 2015.

_______________________________
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE

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